Jim Eagles: Legal landscape loses landmarks

COMMENT

Why should anyone care whether it is the Privy Council in London or the new Supreme Court in Wellington which stands at the pinnacle of our judicial system?

Simple. Because that court will have the power to make decisions which change the nature of our society.

If you don't believe that, consider the recent Court of Appeal ruling on the foreshore.

For at least 40 years our courts have ruled that the law says Maori cannot bring a claim to ownership of the foreshore.

Suddenly the courts have ruled that the law says Maori can bring a claim.

Yet the law has not changed. All that has changed is that today's judges have decided to give greater weight to international opinion on native title.

The question is not whether you agree or disagree with Maori being able to claim the foreshore. It is who should make our laws.

If our judges believe society has changed its views on some subject - native land rights for instance - should they feel free to reinterpret existing law in that light?

Or should it be up to Parliament to decide whether it is appropriate to change the law to reflect those new attitudes?

This is not a new issue. The business community and commercial lawyers have long been disturbed by the fickleness of our courts. Maori, local government and the legal profession itself have had similar concerns.

But they have always had the Privy Council as a backstop which could be relied on to provide the consistency and credibility so vital in a modern economy.

Now - despite the vigorous opposition of the groups which from time to time have turned to that backstop - it is to be removed.

To make matters worse, it will be replaced by a Supreme Court dominated by the judges who produced the foreshore decision and with a constitution seemingly designed to encourage even more judicial lawmaking.

The legislation establishing the new court clearly envisages it branching

out in new directions, taking into account New Zealand's history and traditions and, of course, the Treaty of Waitangi.

All of this greatly increases the likelihood of more decisions which abruptly overturn 40 years of legal precedent, making the law less predictable and the legal system a less reliable place to turn to.

That has worrying implications for us all.